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Governor Defunds Public Defender Office; PD Office Drafts Governor Into Service

In an odd case of becoming the thing you hate, Missouri Governor Jay Nixon has been assigned to serve as defense counsel on a criminal case by the state's public defender office. This is the same public defender's office whose budget he's been slashing for the past seven years.

In response to these budget cuts, Director of the Missouri State Public Defender Michael Barrett invoked a previously unused state statute that gives his office authority to assign cases to private attorneys. Gov. Nixon, previously the state's attorney general, was Barrett's attorney of choice.

The Guy Who Created This Problem

As Barrett's letter to the governor points out, Missouri's public defender system, ranked 49th in the nation, is massively overburdened and underfunded:

After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD's budget, this time by 8.5%. However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of your executive agencies does not even add up to one half of one percent (.47%).

Barrett also points out a Department of Justice investigation that determined "poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders." Without funds to hire new attorneys to cover increasing caseloads, Barrett was left with no choice but to employ "the one attorney in the state who not only created this problem, but is in a unique position to address it."

It Depends on What Your Definition of 'Delegate' Delegates

The statute cited by Barrett, Section 600.042.5 of the Missouri Revised Statutes, allows the director of the state public defender to "[d]elegate the legal representation of any person to any member of the state bar of Missouri." The statute itself doesn't require budget shortfalls to necessitate the authority to draft private counsel for indigent criminal defendants, but as Barrett noted: "I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis."

Nixon, through his chief spokesperson, denied that he could be so pressed into court duty, saying such delegation required "the consent of the private attorney." We have a feeling this little legal spat is far from over.

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